There are five grounds for challenging a will, which we explain in another article.
The High Court used the recent case of Leonard v Leonard [2024] EWHC 321 (Ch) as an opportunity to compare and contrast two of the most common grounds, namely:
- lack of testamentary capacity and
- want of knowledge and approval
The Case
The Claimants were Dr Jack Leonard’s children from his first marriage. They invited the court to pronounce against a will executed by Dr Leonard in 2015 in favour of an earlier will executed in 2007 which would leave them financially better off.
The High Court considered:
- whether or not Dr Leonard had capacity at the time of executing the 2015 will; and
- whether he knew and approved the contents of that will.
The 2015 will was prepared over a prolonged 2-year period by a tax advisor who apparently did not take any formal steps to ensure that Dr Leonard had capacity to execute it. She did not see nor speak to him for a year before he executed his will, nor pick up on any obvious warning signs that he did not have capacity to make the will.
Testamentary Capacity
The legal test for testamentary capacity was set out in Banks v Goodfellow (1870) LR 5 QB 549 which has stood the test of time. For more information on this top, see our article on testamentary capacity.
The test essentially comprises of four limbs, being:
- The person making the will (‘the Testator’) shall understand the nature of making a will and it’s effect;
- The Testator must understand the extent of the property of which she is disposing of in her will;
- The Testator must be able to appreciate any claims (i.e. that could be brought by others against her estate) to which she ought to give effect;
- The Testator must have no disorder of the mind that is such that had it not existed, she would not have prepared the will in the terms that she does.
(the so-called ‘Banks v Goodfellow Test’)
In the application of the Banks v Goodfellow Test, the High Court made some further points to note:
a) An ability to understand matters is not the same as a memory test (although memory is a cognitive function and will bear relevant);
b) A general idea of one’s assets will be sufficient, it is not necessary to have a full inventory of assets to satisfy limb (2) of the test;
c) The court will consider the ability to make decisions when considering capacity, not just to understand the transactional process of making the will itself;
d) Dr Leonard had dementia. The High Court confirmed that people who are suffering from reduced cognitive abilities owing to mental illness(es) are not automatically considered to lack capacity. Every case will depend on the individual circumstances.
Knowledge and approval
A will which has been validity executed on the face of it will be said to have been executed with the testator’s knowledge and approval. However, in circumstances where enough suspicion is raised, the burden of proof will shift. This means that it will be for the party wishing to uphold the will to prove that the Testator did in fact know and approve of the contents of the will. Again, for more detail read this article.
It is not enough for the Testator to know or say the words to confirm they understand; they must approve of the contents of the will in the sense of understanding what it is doing and it’s effect. Knowledge and approval requires that the will truly represents the Testator’s intentions. This is considered objectively, rather than being a value judgement of the individual circumstances of the case (and of the Testator’s individual circumstances).
Distinction between testamentary capacity and knowledge and approval
Whilst the two potential challenges are clearly interlinked, a side-by-side analysis shows that there are some notable distinctions.
The Court in Leonard neatly summarised this: testamentary capacity questions the Testators ability to make choices, whereas knowledge and approval requires an ability to understand and approve of the choices that have already been made.
The Decision
On the application of the Banks v Goodfellow Test the court concluded that Dr Leonard had failed to satisfy limbs 1 and 4: i.e.
- He did not understand the nature and effect of making the 2015 will;
- He had a disorder of the mind which affected him in carrying out this exercise.
The Court found that he lacked capacity, and did not know or approve of the contents of the 2015 will. The Court therefore declared that the earlier will of 2007 was valid.
The toll of such a case on the parties’ finances, time and emotion is huge and was expressly acknowledged by the Judge.
Specialist advice at the early stages of these types of case can do a great deal to avoid matters becoming unnecessarily expensive and protracted and ensure that resources are not wasted. Our experienced team are happy to discuss your situation with you to advise on whether it would be worthwhile taking steps to either challenge a will or defend a claim.
If you would like to discuss this with us, please do get in touch by phone 0345 450 5558, by email enquiries@stephens-scown.co.uk, or by completing the form below.